ML20035B539

NRC Staff Support of Licensee Motion for Reconsideration.* Decommissioning Funding Plan Cannot Be Deemed Adequate Until Listed Issues Resolved.W/Certificate of Svc

ML20035B539
Person / Time
Site:	Rancho Seco
Issue date:	03/26/1993
From:	Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#293-13805 DCOM, NUDOCS 9304020127
Download: ML20035B539 (30)

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UNITED STATES OF AMERICA' oE NUCLEAR' REGULATORY COMMISSION-193 ita 26 : P450:-

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NRC STAFF'S SUPPORT OF LICENSEE'S MOTION

FOR RECONSIDERATION:

Edwin J.~ Reis Deputy Assistant General Counsel:-

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BEFORE THE COMMISSION i

In the Matter of

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Docket No. 50-312-DCOM SACRAMENTO MUNICIPAL UTILITY

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(Decommissioning Plan)

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(Rancho Seco Nuclear Generating Station)

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I NRC STAFF'S SUPPORT OF LICENSEE'S MOTION

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FOR RECONSIDERATION l

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Edwin J. Reis l

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Deputy Assistant General Counsel _

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March 26,1993 l

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5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION f

BEFORE THE COMMISSION i

In the Matter of

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Docket Nos. 50-312-DCOM t

SACRAMENTO MUNICIPAL UTILITY

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DISTRICT

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(Decommissioning Plan) i

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(Rancho Seco Nuclear Generating Station)

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l NRC STAFF'S SUPPORT OF LICENSEE'S MOTION FOR RECONSIDERATION INTRODUCTION I

The NRC Staff supports " Licensee's Motion For Reconsideration" (dated

-j March 10,1993), of CLI-93-3, __ NRC __ (March 3,1993), which remanded this f

proceeding to the Licensing Board, because the established standards for allowing discretionary intervention were not applied, and because the decision provided for the i

litigation of an irrelevant matter which would not provide a basis for relief herein.

l ISSUES PRESENTED i

I 1.

Should A Discretionary Hearing Be Held On The Basis Of ECO's Petition When ECO Has Not Shown That It Could Aid The Commission In Deciding Substantive l

Issues?

1 II.

Should An Environmental Contention On The Loss Of Offsite Power Be Admitted l

When The Loss Of Offsite Power Could Not Have An Environmental Effect During Decommissioning?

III.

Should ECO Be Permitted To Amend Its Decommissioning Funding Contention l

On The Grounds Of " Confusion" Where ECO Has Not Claimed Any Confusion,

-l And Stated, At The Prehearing Conference, That It Did Not Wish To Amend Its Contention?

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! l BACKGROUND This proceeding involves approval of the licensee's proposed decommissioning a.

i plan for the Rancho Seco Nuclear Generating Station. That plan was filed by the licensee r

on May 20,1991, and amended on October 21,1991, to contain a supplement to the Rancho Sex Environmental Report. See 10 C.F.R. 51.53(b). LBP-92-23,36 NRC 124 l

(1992). The decommissioning plan contained a decommissioning funding plan, as required by It, C.F.R. 6 50.82(c). Tr.142,144,159; 36 NRC at 136-37.

l A Notice of Opponunity for Hearing was published with respect to the i

i decommissioning plan on March 12,1992. 57 Fed. Reg. 9577. The Environmental and Resources Conservation Organization (ECO) filed a petition to intervene. 36 NRC at 124-25. ECO was given an opportunity to amend its petition and file contentions.

i 36 NRC at 125. After a July 14, 1992, prehearing conference, the Licensing Board l

determined that ECO had not shown standing to intervene because it had not shown that.

it or any of its members could suffer an injury from approval of the decommissioning i

plan. 36 NRC at 126-30. As the Licensing Board concluded, *ECO's unsupported i

general references to radiological consequences are insufficient to establish a basis for injury." 36 NRC at 130.

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The Licensing Board also denied ECO standing as a matter of discretion. After listening to ECO's presentation at the prehearing conference, and considering whether i

"'some discernable public interest will be served by a hearing,'" the Licensing Board concluded that, "ECO would not reasonably be expected to assist in building a sound

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record on which the Commission may base its decision in the proceeding," principally l

i on the ground that ECO had not submitted a litigable contention. 36 NRC at 131-32.

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The Licensing Board rejected ECO's environmental contention, as ECO l

misperceived the nature of the Environmental Report (ER) on decommissioning, which is a supplement to the ER prepared on the grant of an operating license (sce 10 C.F.R.

i 51.53(b)), and failed to show that the Generic Environmental Impact Statemer,r. (GEIS) l l

1 on Decommissioning (NDPEG-0586, August 1988) did not bound the environmental impacts which might be caused by decommissioning Rancho Seco. 36 NRC at 134-35.

r The Licensing Board also concluded that the principal " environmental" issues that ECO sought to raise on the alleged need to prepare an environmental impact statement (EIS) involved the licensee's ceasing to operate Rancho Seco and the ahernative of the resumed

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operation of Rancho Seco, which the Commission had formerly ruled were not " Federal actions" and need not be considered in NRC proceedings. Id.

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The Licensing Board also rejected each of ECO's " safety" contentions. 36 NRC i

at 136-38. Among the safety contentions rejected was one claiming that the licensee 1

lacks an adequate decommissioning funding plan. In regard to that contention, the l

Licensing Board stated:

l Even though ECO may be technically correct about the currerit fundmg plan, we fail to see how this establishes a material factual or legal dispute.

l If the Staff should grant the exemption [in regard to the funding plan], it I

will remedy the defect. (The granting of such an exemption would be l

consistent with a newly revised version of 10 C.F.R. 50.75 ) If the Staff j

should deny the exemption,it will have to take steps to ensure that SMUD i

provides adequate funding for the decommissioning. Indeed, the crux of

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l ECO's concern, that its views on the exemption be taken into account, has

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been fulfilled. We thus decline to entertain ECO's contention on this subject.

P 36 NRC at 137 [ Footnote omitted).

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At the prehearing conference, ECO was informed that the contention was insufficient because it did not set out any faults in the decommissioning funding plan that

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had been.stibmitted; however, ECO refused to amend the contention stating:

MR. MCGRANERY: We do ne criticize the plan in this proceedmg.

j We only identify our interpretation of the regulations to require as a prerequisite to approval of any decommissioning plan, existence of an l

approved financial plan. That's the sole issue. We are asking the Board to rule on that, as a matter of law.

An appeal of the Licensing Board's decision was filed with the Commission,.

culminating in CLI-93-03. As peninent to the subject motion for reconsideration,the l

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Commission did not determine whether ECO had standing, but stated:

l Although ECO did not clearly present a case showing the requisite interest

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to participate in an NRC proceeding, ECO did present several difficult questions which, if resolved in its favor, would support standing.

Moreover, ECO has submitted one viable contention and will be permitted

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to amend another. For these reasons and in light of our on-going review of our provisions for public participation on decommissioning matters, we i

have chosen to leave the question of standing as of right unresolved and i

to grant ECO discretionary intervention. To the extent that we have j

decided this appeal without resolving the petitioner's standing as a matter j

oflaw, we rest our decision on our discretionary authority to hold hearings e

and to permit participation in our proceedings. We do so in view of the l

unusual circumstances presented by this case. Our decision should not be i

viewed as precedent for any other matter that may. come before the Commission.

We, therefore, turn directly to ECO's contentions, j

{ Footnote omitted.]

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! l The one contention the Commission admitted is that in the licensee's I

i Environmental Report "there is no reference to a particularized study to allow l

i independent verification of the conclusion that the probability of a LOOP [ loss of offsite power] is less than once in 20 years." CL1-93-3 at 17.'

i The Commission further provided that ECO might amend its contention dealing with the need for an adequate decommissioning funding plan before the approval of the Rancho Seco decommissioning plan because of "conhion" over whethet an exemption i

to regulations was required in regard to that plan. CLI-93-3 at 23.2 On March 10,1993, " Licensee's Motion for Reconsideration" of CLI-93-3 was filed. The NRC Staffin this pleading supports that motion.

i DISCUSSION 1.

Discretionarv Intervention Should Not Be Granted.

The Commission granted discretionary intervention to ECO on the ground that ECO presented " difficult questions" concerning standing and because ECO submitted one I

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3 The licensee was ordered to provide ECO with the basis ofits conclusion on the l

frequency of LOOP and ECO was given 14 days thereafter to amend the contention, if i

it wished. Id.

j The Commission also reiterated ECO's right to file new contentions on the Staff's environmental review document, provided the criteria for-late filed contentions in i

10 C.F.R. 6 2.714(a)(1) are met. CLI-93-3 at 32.

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, j viable contention involving LOOP,8 and will be permitted to file an amendment of its

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contention involving the decommissioning funding plan.'

i The Commission has established " specific criteria" under which it will grant intervention as a matter of discretion. Commonwealth Edison Co. (Dresden Nuclear Power Station, Unit 1), CL1-85-25,14 NRC 616, 623 (1985). These criteria are the standards for late intervention and the standards for intervention, generally. See Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and Q CLI-76-27,4 NRC I

610, 614-17. The most important of these criteria is whether one who does not have standing has the knowledge and expertise to meaningfully aid the Commission in reachmg a decision on the issues before it. As the Commission stated in Pcbble Springs:

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[P]ermission to intervene should prove more readily available where petitioners show significant ability to contribute on substantial issues of law or fact which will not otherwise be properly raised or presented, set j

fonh these matters with suitable specificity to allow evaluation, and i

demonstrate their importance and immediacy, justifying the time necessary to consider them.

ll 4 NRC at 616.

-It is necessary to carefully consider whether.one who seeks discretionary intervention can make a significant contribution to the record, particularly where a -

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In the following point, it is demonstrated that this contention involving a loss of f

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8 offsite power (LOOP) could not provide a basis for reliefin this proceeding and, pursuant j

to 10 C.F.R. f 2.714(d)(2)(ii), should not have been admitted for litigation, as offsite power is not needed to prevent a release of radiation during decommissioning.

' Amendment of this contention was permitted because of alleged confusion on when decommissioning funding plan contentions were due. As we show in the third point in this pleading, there was no confusion and ECO's counsel stated he did not wish to raise substantive issues regarding the decommissioning funding plan in this proceeding.

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l hearing would not otherwise be held. Tennessee Falley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413,5 NRC 1418,1422-23 (1977). Providing for a public l

hearing where there is no showing that one who seeks discretionary intervention could aid in the Commission in determining issues before it is a waste of public resources (in both time and money) and does not further any public interest. Id.5 There is no reason to provide for a relatively costly discretionary hearing to one who does not have standing.

j and cannot show he can be of aid to the Commission.

Although ECO was allowed to intervene on the basis of the LOOP contention, l

ECO did not show it had any expenise on any issue, let alone on the one admitted

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contention involving LOOP. ECO's total statement of its expertise to contribute to the j

record in its

• Petition For Leave To Intenene"* and the Supplement to that petition' l

was:

The extent to which ECO's participation may reasonably be expected to i

assist in developing a sound record is demonstrated by the particularity of f

issues and documentation identified in its conditions.

The fact there is no other petitioner requesting a hearing or seeking to intervene means that there is no other mechanism for the holding of a L

hearing or the representation of ECO's interests. This circumstance weighs heavily in favor of granting ECO discretionary standing as an j

A discretionary public hearing will not be started absent a showing that the hearing 5

will serve a useful purpose. See Public Senice Co. ofIndiana (Marble Hill Nuclear l

Generating Station, Units 1 and 2), CLI-80-10,11 NRC 438,443(1980).

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6 Environmental And Resources Conservation Organization's Petition For Leave To L

Intervene And Request For Prior Hearing, dated April 20,1992.

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ECO's Amendment And Supplement To Petition For Leave To Intervene And i

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Request For Hearing, dated June 29,1992.

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l l L intervenor. See Wisconsin Public Sen' ice Corp. (Kewaunee Nuclear j_

Power Plant), LBP-78-24, 8 NRC 78, 84 (1978); Florida Power and Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-79-21, I

10 NRC 183,195 (1979).

Supplement at 12.

At the prehearing conference, when pressed on the expertise that ECO could bring to the proceeding, ECO's counsel could only state:

f JUDGE BECHHOEFER:

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• What elements should we take into account? Have you got any particular witnesses or anything like that to offer? So far you haven't. Degree of expertise, for instance?

MR. MCGRANERY: Thus far, we feel that there has not been anything r

j submitted by the licensee in the Environmental Repon, that any expert could address. We simply have great vacuums where information should be in the ER. When and if we are able to get an adequate ER, then we would have experts who are members of ECO, who would be able to address the environmental considerations and health and safety l

considerations.

l Dr. Rossin, himself, as I mentioned earlier, has been Assistant Secretary of Energy for Nuclear Energy. He is a highly respected engineer, who is very knowledgeable of nuclear power plants. He is also conscious of the environmental interaction of electricity with the environment, as former executive of Commonwealth Edison.

He cou!d be of great value to this Board, in considering the environmental impacts of the proposal to decommission.

1 JUDGE BECHHOEFER: Would your organization call him as a witness if we approved certain of your contentions?

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MR. MCGRANERY: Oh, yes. He would review. the Environmental l

Report as it is directed to be improved by this Board upon a finding of l

current inadequacy, and could be very helpful. Plus, insofar as the first i

criterion goes, the extent to which petitioner participation may reasonably be expected to assist in developing a sound record.

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JUDGE BECHHOEFER: That's the one the Commission places highest

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importance on.

Tr.169-170.8 i

These generalized statements do not show the expertise or knowledge required of i

a petition when a hearing'would not otherwise be held. See Watts Bar; supra

• Vague assertions regarding petitioner's ability or resources, as we have here, is insufficient."'

i Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704,-

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16 NRC 1725,1730 (1982). " Generalized statements will not suffice" as a basis for i

discretionary intervention, as a petitioner has the burden of showing it will contribute j

facts and knowledge that will help the Commission decide substantive issues. Nuclear' Engineering Co. Sheffield, Illinois, Low-Ixvel Radioactive Waste Disposal Site, ALAB-473,7 hTC 737,745 (1978).

.i A listing of prospective witnesses and precis of testimony or other germane evidence is required even in cases where a petitioner who has standing files a petition for I

late intervention. See Tcras Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CL1-88-12,28 NRC 605,611 (1988), qfd sub nom. Citizensfor

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Fair Utility Regulation v. NRC, 898 F.2d 51 (5th Cir.1990); Washington Public Power Supply System (WPPSS Nuclear Project No. 3), ALAB-747,18 NRC 1167,1180-81 (1983). These tests are applicable to a grant of discretionary intervention. Pebble Springs, supra, Watts Bar, supra.

' Mr. Crispo, in the affidavit submitted the support of the ECO Supplement to the Petition, similarly does not show any expenise on issues that may be here involved.

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'I The substantial waste of resources involved in granting ECO discretionary

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intervention in this proceeding is aptly illustrated by the contention on LOOP and ECO's i

i newly filed contention on decommissioning funding (which is submitted herewith for the i

Commission's convenience). As we show in the following part of this response, the f

LOOP issue is immaterial as the Environmental Repon's undisputed conclusion was that l

emergency cooling of the fuel pool was not needed during decommissioning. Most of l

t the bases listed for the decommissioning funding contention are not faults in the funding plan, but are alleged faults in the decommissioning plan itself which ECO claims will f

affect decommissioning funding. ECO had ample opponunity to raise these issues on the decommissioning plan itself early last summer, but did not do so. Further, ECO lists as its expens on decommissioning funding Dr. A. David Rossin and/or David R. Crespo (Proposed Decommissioning Funding Plan Contention, at 2); however, there is not a i

scintilla ofinformation that these persons have any expert knowledge on financing, utility rates or any other matter in dispute.

The intervenor has not met the tests for discretionary intervention and has not l

shown the particular expertise or knowledge it can bring to this proceeding or what new i

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facts a hearing may uncover. Although the Commission has the authority to change its standards for discretionary intervention, no justification for such change has been presented by ECO in this case.

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t 2.

The " LOOP" Contention Should Not Be Admitted Since It Would Not Entitle Petitioner To Relief.

The Commission's Rules of Practice provide that a contention may not be admitted a

1 for litigation, if:

l The contention, if proven, would be of no consequence in the proceeding because it would not entitle petitioner to relief.

10 C.F.R. f 2.714(d)(2)(ii).

The Commission admitted a contention concerning the basis of a statement in licensee's Environmental Report that the prchability of loss of offsite power (LOOP) at i

Rancho Seco is less than once in 20 years. CLI-93-3, at 16-18,32-33. However, this

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contention may not be admitted for litigation, as its proof would be of no consequence and would not entitle - ECO to any relief.

In discussing LOOP, the licensee's Environmental Report (ER) first states why a LOOP event is not of concern when the l

plant is in a SAFSTOR condition, in contrast to when it is operating:

During normal plant operations, it is important that electrical power be available to support equipment needed to operate the plant and mitigate the i

consequences of an accident.

During Custodial-SAFSTOR,'a-LOOP would result in the loss of the Spent Fuel Cooling System (SFC).

However, there is adequate time available to take corrective action without a safety consequence in the event of a LOOP.

Environmental Report at 5-6.

After detailing offsite power supplies to Rancho Seco, and stating that a probability of LOOP is less than once in 20 years, the Report details why the frequency.

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l of a LOOP event is not germane to the consideration of possible radioactive releases from j

the spent fuel pool (SFP) in the decommissioning period:

An alternate power supply can be made available well within the minimum time required to take corrective action to restore SFC. A LOOP will not result in a release of any significant amount of SFP inventory of j

radioactivity.

Spent Fuel Pool Decav Heat load

-j The controls required to protect the spent fuel a e predicated primarily on the level of decay heat from the spent fuel in the SFP. The decay heat-load for the SFP in the defueled condition was calculated using the methodology described in ANSI /ANS 5.1-1979 and Branch Technical

. Position ASB 9-2.

Table 3-21 of the DP provides the length of time required for the SFP l

water to reach 212*F (i.e., boiling point of water), from an -initial temperature of 120"F, and the time required to evaporate 6.75 ft of water from the SFP following a loss of SFC. The 6.75 ft measurement was i

chosen because SFP water level is normally maintained above 37 ft (the low-low level alarm) and, as evaluated in the PDTS Safety Analysis, must be maintained at 30 ft, 3 in. to limit the dose rate at the SFP surface to 2.5 mR/h when 1080 spent fuel assemblies that have decayed 3 days j

following irradiation at 100% power is stored in the SFP.

This SFP surface dose rate calculation is very conservative because the -

reactor was not operated at 100% power as assumed in the dose rate calculation, the number of spent fuel assemblies stored in the SFP is much

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less than 1080, and the actual decay time of the 493 spent fuel assemblies in the SFP is significantly higher than the 3 days assumed. No safety _.

implication exists for a significantly lower SFP level as long as personnel exposure is monitored and maintained ALARA.

As shown in Table 3-21 of the DP, upon a loss of SFC on June 7,1991, the minimum time required to reach boiling in the SFP is 143 hours0.00166 days <br />0.0397 hours <br />2.364418e-4 weeks <br />5.44115e-5 months <br />.

Thus, a minimum of 6 days is available to restore SFC prior to the occurrence of boiling following a, loss of SFC.

In addition, if the l

additional time available through boil-off of 6.75 ft of the 37-ft normal minimum water depth is taken into account, a minimum of 17.7 days (as of June 7,1991), is available to implement corrective actions to restore

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i level and cooling capability. If boil-off of SFP water were to occur due to a loss of SFC, the simple addidon of water to the SFP would extend the time to implement corrective actions to restore SFC.

No degradation effects on the fuel and cladding is associated with SFP boiling because the fuel is designed to operate at significantly higher

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coolant temperatures than 212*F. The effect of thermal stresses on the structural supports of the SFP have been analyzed and found acceptable up to a SFP temperature of 212*F. Therefore, a 212*F SFP temperature 7

does not impose a safety hazard.

Environmental Report at 5 5-7.'

i Thus, the Environmental Repon's statement that there will be no release of radioactivity from the spent fuel pool is not dependent on the assurance of no loss of cffsite power, but is " predicated primarily on the level of decay heat from the spent fuel in the SFP" and the long period of time (17.7 days as of June 7,1991), in which to take action to protect the fuel (by restoring power or adding water) if offsite power is lost.

l ECO has not questioned these calculations, which appear in the Environmental Report, i

in any of its pleadings.

In short, the conclusions of the ER concerning offsite radiological releases in the SAFESTOR condition are not based on the frequency of f

LOOP events, but on the length of time available to restore cooling.

i Both the statement in the ER and the contention concerning the frequency of a LOOP event are not material to the conclusions of the ER concerning releases from the i

4 facility under SAFESTOR conditions. Thus, the contention poses no materialissue of

' We attached Chapter 5 of the Licensee's Environmental Report on Environmental Impacts of the proposed action. It is emphasized that this report was a supplement to the ~

environmental impact statements and environmental reports on Rancho Seco previously issued (See 10 C.F.R. 65 51.53(b),51.95(b)), and the Generic Environmental Impact Statement on Decommissioning of Nuclear Facilities (NUREG-0586, August 1988).

Sec 53 Fed. Reg. 24018,24023,24039 (June 27,1988).

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fact or law and even, if proven, would not entitle petitioner to relief. The contention should not have been admitted for litigation.10 C.F.R. f 2.714(b)(2)(iii)and (d)(2)(ii).

a 3.

ECO's Purponed " Confusion" Concerning The Decommissioning' Plan Provides No Basis For Now Filine A New Contention.

The Commission has provided ECO 14 days to submit a contention on the adequacy of SMUD's decommissioning funding plan on the ground that there may have been confusion about when such a contention was due. ECO's brief on appeal does not claim it was confused on when contentions on the adequacy of'the decommissioning plan were due. See Environmental and Resource Conservation Organization Briefin Support of Appeal, dated September 8,1992, at 35-37. Nor does ECO state on appeal that it I

wishes to file a contention on the adequacy of the decommissioning plan. Id. ECO only argues that the funding plan is necessary for approval of the decommissioning order. Id.

As the Commission recognized, all panies agreed to that statement and there was no dispute of law or fact on which to premise a contention. CLI-93-3 at 22, see also Tr.146, Tr.152-153.

ECO was informed that an exemption from decommissioning funding requirements was no longer needed in this case, that decommissioning funding would be examined in this proceeding before decommissioning could be approved, and that a contention which did not set out substantive faults with the filed decommissioning funding plan was insufficient. Tr. 139-140, 141-42, 145, 147-48,151. ECO's counsel then stated that he 4

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chose not to file substantive contentions on why the occommissioning funding plan was j

inadequate in this proceeding. Tr.153."'

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-i It was, thus, clear that any substantive contentions on the funding plan were then

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due in this proceeding, since no exemption was required. Eco's counsel knew he had an obligation to set forth reasons why the decommissioning funding plan was inadequate at the prehearing conference." He simply and consciously determined not to do so.

Since ECO does not esen claim in its appeal that it was confused about when a l

contention on the adequacy of the decommissioning plan was due, there appears to be no basis to allow ECO time to file contentions on that matter at this time.

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There is no question that ECO was informed at the prehearing, in July 1992, that 2

any contention on the adequacy of the plan was then due. See, e.g., Tr. 152-53.

i However, ECO has not since that time sought to file these contentions under the provisions of 10 C.F.R. f 2.714(b), which provides methods to late file contentions.

Issues of whether an exemption was needed and whether a hearing was to be held 88 on the exemption request are immaterial. ECO knew the exemption had been withdrawn.

See 36 NRC at 137; Tr.152-53,139-40. ECO's counsel was invited to file contentions on the adequacy of the funding plan in this proceeding, but said he would not do so.

l Tr. 152-55.

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CONCLUSION For the reasons set out above,-the NRC Staff supports " Licensee's Motion for Reconsideration" of CLI-93-3.

Respectfully submitted,

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f Edwin J.

is Deputy ssistant General Counsel for Reactor Licensing Dated at Rockville, Maryland this 26th day of March 1993 P

'2 In contrast to the arguments in licensee's motion, at 13-15, the Staff notes that the

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relief provided by the Commission on the ability to file contentions on the Staff's environmental assessment does not seem to go beyond that provided for in 10 C.F.R.

f 2.714(a)(1). See CL1-93-3 at 32-33. The Staff does not seek reconsideration of that action.

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A I I A C II M E N I BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION j

Before The Atomic Safety And Licensine Board j

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) Docket No. 50-312-D00M i

In the Matter of

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) (Decommissioning Order) j Sacra: ento Municipal Utility District )

(Rancl.o Seco Nuclear Generating

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Station)

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ECO'S CCNTENTION ON LICENSEE'S PROPOSED i

DECOMMISSIONING FUNDING PLAN r

Pursuant to the Cor.=ission's Me=orandu= and Order in sacrarento Municipal Utility District (Rancho Seco Nuclear i

Generating Station), CLI-93-3 (at 33), 37 NRC (March 3,.

1993')

(" Slip Op.") and 10 CFR 5 2.714 (b) (2) (1992), the Environrental and Resources Conservation Organization ("ECO")

hereby subsits its contention with respect to the Sacra: ento Municipal Utility District ("SMUD") proposed Decom=issioning Tunding Plan.

ECO contends that SMUD's' proposed Decor =issioning 1

Tunding Plan is inadequate as a natter of fact and of law as

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detailed below not only (a) because the funding plan is inadequate to meet the cost targets expressed, but also (b) because SMUD lacks the resources to meet those targets, (c) because the cechanism of public and Nuclear and Regulatory Cennission ("NRC") review only once every five years fails to I

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adoquately protoct tha' h3alth cnd cafoty of tJr3 public by foiling f

to alert the NRC Staff and the public to growth in cost estimates-and/or slippages in decommissioning funding in a timely manner, l

i and (d) because the funding target itself is grossly underestinated due, among other things, to inadequate estimates of the technical issues to be faced and the technical and canpower resources that will be demanded during the decommissioning task.

A brief explanation of the bases of this contention are stated below.

Egg 10 CFR $ 2.714 (b) (2) (1) # (1992).

Also, a i

concise state =ent of the alleged facts and/or expert opinion, which support this contention and on which ECO intends to rely in proving the contention at the hearing, are provided below l

together with references to those specific sources and documents of which Eco is aware and on which ECO intends to rely to l

establish those facts.

Egg 10 CFR 5 2.714 (b) (2) (ii) (1992).

In l

particular, Eco states that it will rely on the expert' opinions' of Dr. A. David Rossin and/or' David R. Crespo-to support ECO's contention.

10 CFR E 2.714 (b) (2) (ii) - (1992).

Summaries of the qualifications of these experts have previously been provided to the Ato ic Safety and Licensing Board by affidavit and a fuller presentation of their expertise will be provided at the hearing.

ECO's brief explanation of the bases of its contention j

inc3uding the alleged facts and/or expert opinion, which support the contention, is as follows:

1.

SMUD will not be able to continue its commitment to the Decon=issioning Funding Plan because among other things, P

e its long-term debt is increasing at the rate of 8.81 per year.

Eeg Note 3 to SMUD 1991 Financial Staterents.

And SMUD's dependence on purchased power has almost doubled from 4.308 Billion KWH in 1988 to 7.968 Billion KWH in 1991.

1991 SMUD Annual Pecort at 14.

This dependence on others for the power supply of the citizens of SMUD creates great uncertainties of confidence in the firmness, the availability, and the cost of that power.

SMUD's current avoidance of rate increases through the issuance of long-ter= bonds (about $150 Million in 1991 alone) not only violates the principle that the beneficiaries of Rancho Seco should pay the cost of decommissioning to the extent possible, but it vill eventually create a tidal wave of debt severely threatening the viability of the funding plan.

2.

SMUD's estimate of the total cost for decctnissioning (approximately $318.8 Million in 1991 dollars including $3B Million for cinicu= site restoration) is unreliable because it was precised on an original esticate of the cost of the Independent Spent Tuel Storage Installation ("ISFSI") of between S13.7 and $15.8 Million in 1991 dollars.

J991 SMUD Notes to Financial Staterents at Note 1; DAGM/NUC 91-137 (October 4, 1991) enclosure at LA-3.

However, that design has been withdrawn and no new design and acco:panying cost esticate supported by actual contract pricing is available.

3.

The SMUD estinate of the cost of deco==issioning was also pre =ised upon approval of the decommissioning plan by

" rid-1992" and therefore is inadequate because such approval was

) i not forthcoming.

Note 5 to SMUD 1991 Notes to-Financial Staterents.

Such nis-estinates of planning also are evidence of SMUD's poor _ranagement qualifications for the project, which further cast out on the adequacy of the decommissioning cost i

esticates submitted by SMUD.

4 4.

The fact that SMUD had to increase decommissioning liability cost estimates by $75.4 Million in 1991 alone reflects not eniy on the management ec=petence of SMUD but also' dictates l

that there should be at least a semi-annual report t; SMUD to the NRC, which would be cade publicly available and would address revisions in the milestones for decommissioning and related work (g.g., the ISTSI), SMUD's progress in meeting planed milestones, u.

related changes in cost estimates and contributions to the deco =rissioning fund, the status of the total of the fund as cc: pared to planned growth, and any actions taken or to be taken,

'j by SMUD to make up then current shortfalls in the decon=issioning i

I funding effort.

SMUD 1991 Notes to Financial Statements at

[

Note 5.

5.

A significant portion of SMUD's plans to provide for savings to pay for the decommissioning funding program is precised on the savings projected to be achieved through-SMUD's i

Conservation and Load Manage =ent Programs.

Ege 3.g. SMUD 1991 p

Lead Torecast (April 30, 1991) at 13.

The unreliability of that pre =ise casts doubt on SMUD's Decommissioning Funding Program.

4 i

Tor example, as of April 30, 1991, SMUD predicted that its

[

Conservation and Load Management Prograns would enable it to i

i i

i P

i

! shave peak load to 2,000 MW during 1991.

142 In fact, the peak-r load during 1991 was 2,I71 MW, or B.55% above the tarcet.

If SMUD's esticates can be so far wrong in the same year they are rade, the NRC can have no confidence in its long-term estimates over the next 18 years.

SMUD should be required to submit a Deco==issioning Funding Plan based on conservative, rather than

[

i opti=istic, estimates of the savings that SMUD will be able to achieve in other areas.

6.

SMUD's Decon=issioning Plan (including the IST5I),

decot:issioning cost estimate, and the associated Decon=issioning Tunding Plan do not make adequate provision for physical and personnel security reasures to give reasonable assurance of the I

health and security of ECo's ne=bers or the general public.

In order to verify the adequacy / inadequacy of SMUD's physical and personnel security 7 ensures and their associated cost and funding i

provisions between now and the completion of deco==issioning and the shiprent of fuel off-site and in order to frame appropriate and specific contention on those issues, ECo hereby seeks access to such physical and personnel security reasures but, in the interin, states that SMUD's reduction of physical security reasures and especially its elimination of the NRC required fitness-for-duty program par En significantly compromises the integrity and adequacy of the site security plan and thus significantly and unacceptably increases the risk of radiological j

injury to ECO's ne=bers in violation of the Atonic Energy Act and j

l

)

the NRC's irple=enting regulations.

Eeg, g.g.,

DAGM/NUC 92-180

j t

E (July 27, 1992).

Also, Egg " Vulnerability of the Nation's Electric Systems to Multi-Site Terrorist Attack", Hearing before l

the Committee on Governmental Affairs, United States Senate,

{

101st Cong., 2d Sess. (June 28, 1990); NUREG-0414, Safeguarding a i

Domestic Mixed-Oxide Industry Against a Hypothetical Sub-national I

Threat (May 1978).

The need to carefully assess the adequacy of i

security at Rancho Seco is only emphasized by the fact that the j

~~

f NRC is currently being urged by Congress to reconsider a proposal l

to require vehicle barriers at reactors at an estimated cost of.

}

$100-200,000.

Egg Letter from Chairman of the House Committee on i

Natural Resources and others to the NRC Chairman (dated March 3, j

l 1993).

The security arrangements should also be examined in light of the Com=ission's' decision on the recon =endations for changes to the NRC's regulatory security requirements.

Egg i

Mescrandum for the NRC Executive Director of Operations from the i

Secretary of the Commission,

Subject:

Design Basis Threat (March 1, 1993).

In these respects, the SMUD elimination of the I

fitn.ess-for-duty program is of special concern since in a March I

19, 1993 hearing before the Subcommittee on Clean Air and Nuclear-Regulation of the U.S. Senate Committee on Environment and Public 7

Works, the Nuclear Manage ent and Resources Council e=phasized the importance of the fitness-for-duty program to the overall adequacy of U.S. nuclear plant security.

Statement of Joe T.

l Colvin, President and Chief Executive Officer, Nuclear Management and Resources Council at 8-9.

Further, the adequacy of SMUD's physical security planning should be examined in light of the r

f

SMUD's plan to perform a co=prehensive cleanup and r

decontamination to renova loose surface radioactive contamination, to stabilize the re=aining radioactive conta=i,,ctfon, to prevent its nigration, and in the case of facilities containing significant amounts of radioactive contamination to erect adequate barriers to prevent unauthorized access and to prevent -

aigration of radioactive contacination.

9.

The SMUD cost estimate and hence its Decon=issioning Funding Plan is inadequate in failing to provide an adequate technical basis for SMUD's assumption that there vill t

be only a single airborne pathway for the release of radioactivity.

Eea DAGM/NUC 92-198 August 6, 1992) at Response 4.

SMUD's proposed plan also lacks any provision for reasures to i

address the potential for releases in the context of accident or terroris: scenarios.

Idz 10.

SMUD's Decom:issioning Plan and related cost estinate and funding plan are inadequate for determining the radionuclide inventory and levels in the spent fuel sludge.

Egg DAGM/NUC 92-211 (August 31, 1992) at Response 2.

These technical inadequacies severely question the adequacy of the financial planning for the required radioactive decontamination.

For example, a key SMUD assu=ption is that "the crud is assu=ed to be unifornly distributed over the bottom on the entire Srp.

Id.

Not only does SMUD fail to provide any technical i

justification for this extraordinarily optimistic assurption, but such an assurption is both counterintuitive and highly unlikely

f results of the NRC's incident investigation team analysis of the recent TM'I intrusion event when that report becomes available in the near future.

7.

Insofar as SMUD's estimated decommissioning cost,.

and hence the Deco==issioning runding Program, are premised upon the approval of the further amendment to proposed Amendment No.

i 186 trans=itted by DAGM/NUC 92-261 (January 19, 1993), ECO l

contends that that further proposed amendment would cause the on-

~.

site and corporate organizational staff to be inadequate to f

protect the public health and safety and protect the common defence and security constitutes an imper =issible reduction in I

personnel with no cognisable benefits to the licensee or the general public is total without regulatory justification in its l

safety analysis and is impermissible premised on the " permanently l

defueled condition" which is currently subject to challenge in the U.S.

Court of Appeals.

B.

SMUD has failed to include adequate funds in its dece==issioning cost estinate and hence has failed to provide an adequate Decot=issioning runding Plan for reasures to identify

]

all on-site areas containing radioactivity.

Egg DAGM/NUC 92-198 l

(August 6, 1992) at response to Question 2(c), where SMUD fails l

to provide a detailed justifications for areas not meeting the relevant guidance without response to these issues.

Neither ECO nor the Co==ission can have assurance that SMUD's Deco==issioning i

Plan is in corpliance with the relevant guidance in NUREG/CR-0130 and/or NUREG-0586 relating to the need for a full description of r

a

9_

in view of the fact the SFP is rectangular, its bottom has cultiple elevations, and the eddies of water around the spent fuel racks the=selves as a result of inflow and outflow would naturally cause a non-uniform distribution of the crud over the botto=.

Likewise, there are no technical bases provided for SMUD's dose estimates, nor does SMUD address the cost implications of variations in its esticates of the number of filters needed.

11.

There can be no confidence in the SKUD Decot=issioning Funding plan because SMUD has failed to provide a long-tern Utility District overall financing plan including planned rate increases to provide simultaneously for replacement power for Rancho Seco, new growth in demand, scenarios where electric demand will grow more than nor=al (for exa=ple, through the electrification of transportation as foreseen in the 1221 SMU5 Annual Ferort at B), the continued failure of its Conservation and Load Management Programs, and other relevant centingencies.

12.

The cost of decom=issioning and hence the need for decon=issioning funding are also inadequate since they are i

precised on inadequate technical specification bases for the spent fuel pool level and spent fuel pool te=perature.

DAGM/NUC 92-223 (Septether 23, 1992).

Those bases incongruously assure that spent fuel pool cooling would be lost while one spent fuel /radwaste area exhaust fan would remain running.

of course, loss of power could disable both siruitaneously.

The bases are i

j

-i I !

also inadequate because they do not consider rate of temperature rise without cooling _and without the fan.

They do not consider j

evaporation under those circumstances.

They do not consider time l

of year in the postulated accident.

They do not consider how

~

vater inventory losses from the spent fuel pool would be made up in the event of the loss of electricity.

They do not address the i

availability of on-site power or for how many hours such on-site f

i power would re=ain available as a function of the nachinery and/or of available fuel.

They do not address the period of time it would take for the spent fuel pool water to reach the boiling point under the foregoing conditions or the consequences of such failures.

These unexa=ined and unprovided for risks must be j

t addressed to protect the health and safety of ECO's members and the general public.

Until.the cost of the technical measures necessary to address these risks are determined and included, there can be no assurance of the adequacy of the deco==issioning l

l cost estir. ate nor the'resulting decommissioning funding plan.

13.

The Decommissioning Funding Plan was premised, anong other things, on growth through interest earnings at rates l

that are now unrealistically high.

Until SMUD provides for the-l l

funding plan to consider interest growth at now current rates and 1

4 rakes provision for even perhaps lower rates of interest growth, there can be no assurance that the decommissioning funding plan is adequate.

14.

In Response 1 transmitted by DAGM/NUC 92-198 i

(August 6, 1992), SMUD ad=its that it may have to store the spent i

I I

i 11 -

.i fuel in'the spent fuel pool instead of closing the spent fuel pool in 1998.

If this contingency occurs, SMUD states that it vould incur an annual cost of $8 Million in 1991 dollars from 1999 through 2008.

This would be a total of $80 Million in 1991 t

dollars.

SMUD nerely says that it will review its decommission

}

cost annually and revise the. annual contribution to the

}

i Decons;ission Trust Fund every five years.

ECO contends that this l

l cavalier acknowledg=ent of a probable 25% increase in' i

Deco==is=ioning cost requires a more sober effort at Decon=issioning Funding Planning.

Purther, ECO notes that there t

is no engineering or cost analysis to justify the estimate and l

that, given the delays in the doe spent fuel disposed program,

-[

planning should extend beyond 2,008.

Until these issues are

.j i

i addressed in adequate detail, the Decom=issioning Funding Plan j

cannot be dee:ed adequate.

l i

Respectfully submitted, March 22, 1993 J'

• t m

-> 1 Jayes P. McGranery, Jy/g j

S(ite 500

'V 1255 Twenty-Third St., N.W.

Washington, D.C. 20037 (202) 857-2929 l

Counsel for Environmental and Resources Conservation i

Organization j

e l

l l

3 t

w v

4

l l

1 l

L.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

93 m n N 50 i

l BEFORE THE COMMISSION In the Matter of

)

j

)

I SACRAMENTO MUNICIPAL

)

Docket No. 50-312-OLA UTILITY DISTRICT

)

(Decommissioning Order)

)

(Rancho Seco Nuclear Generating Station

)

Facility Operating License No. DRP-54)

)

CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF'S SUPPORT OF LICENSEE'S MOTION FOR RECONSIDERATION" in the above captioned proceeding have been served on the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this twentysixth day of March 1993:

Charles Bechhoefer, III, Chairman

• James R. McGranery, Jr., Esq.

Administrative Judge Dow, Lohnes & Albenson i

l Atomic Safety and Licensing Board 1255 23rd Street, N.W.

l Mail Stop: EW-439 Suite 500 l

U.S. Nuclear Regulatory Commission Washington, DC 20037 L

Washington, DC 20555 Environmental Conservation Organization Richard F. Cole

• Suite 320 Administrative Judge 101 First Street Atomic Safety and Licensing Board I.os Altos, CA 94022 Mail Stop: EW-439 U.S. Nuclear Regulatory Commission Ms. Jan Schori, General Counsel Washington, DC 20555 Sacramento Municipal Utility District 6201 S Street l

Thomas D. Murphy

• P.O. Box 15830 Administrative Judge Sacramento, CA 95814 i

~

Atomic Safety and Licensing Board Mail Stop: EW-439 Thomas A. Baxter, Esq.

U.S. Nuclear Regulatory Commission Shaw, Pittman, Potts, & Trowbridge Washington, DC 20555 2300 N Street, N.W.

l Washington, DC 20037 t

' A. David Rossin, President Adjudicatory File * (2)

Rossin and Associates Atomic Safety and Licensing Board Panel 24129 Hillview Drive Mail Stop: EW-439 Los Altos Hill, CA 94022 U.S. Nuclear Regulatory Commission Washington, DC 20555 Sacramento County Board of Supervisors 700 H Street, Suite 2450 Atomic Safety and Licensing Board Panel

• Sacramento, CA 95814 Mail Stop: EW-439 U.S. Nuclear Regulatory Commission Mr. S. David Freemen Washington, DC 20555 -

General Manager Sacramento Municipal Utility District Office of the Secretary * (16) 6201 S Street Attn: Docketing and Se:vice P.O. Box 15830 hiail Stop: OWFN-16/G15 Sacramento, CA 95852-1830 U.S. Nuclear Regulatory Commission Washington, DC 20555 Office of Ccmmission Appellate Adjudication

• Mail Stop: OWFN-16/G15 U.S. Nuclear Regulatory Commission Washington, DC 20555 i

g-1 Edwin J.

s Deputy eneral Counsel for Reactor Licensing e

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